F and A
[2003] FMCAfam 273
•5 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| F & A | [2003] FMCAfam 273 |
| FAMILY LAW – Child Support – application for departure from assessment – application for lump sum – jurisdiction to hear application for departure order where only other application pending is application for lump sum – application for lump sum abandoned during proceedings. |
Child Support (Assessment) Act 1989, ss.115(c); 116(1B); 117(2)
McGuiness & Cowie [2002] FamCA 461; (2002) 29 Fam LR 441
Gyselman (1991) 15 Fam LR 219; (1992) FLC 92-279
| Applicant: | G R F |
| Respondent: | R A |
| File No: | PAM 403 of 2003 |
| Delivered on: | 5 August 2003 |
| Delivered at: | Parramatta |
| Hearing date: | 8 July 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitors for the Applicant: | Ms Beckhouse Legal Aid Commission of NSW |
| The Respondent: | In person |
ORDERS
There is to be a departure from the administrative assessment of child support for the period 1 November 2002 to 1 November 2006.
The Respondent father is to pay child support for the children D U born 15 May 1992, M U born 31 December 1993 and I U born 14 December 1996 in the sum of $75.00 per child per week from 1 November 2002 until 1 November 2006.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 403 of 2003
| G R F |
Applicant
And
| R A |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the mother of three children aged 11, 9 and
6 years for a departure from administrative assessment of child support. The mother’s original application, filed on 31st January 2003, sought orders to this effect:
a)that Part 6A and section 98X review and objection requirements in respect of an assessment issued on 29th January 2003 should be waived;
b)that there should be an injunction restraining the Respondent father from dealing with the proceeds of a compensation claim until these proceedings were completed;
c)a departure from the assessment so that the Respondent should pay child support in the sum of $75.00 per child per week; and
d)that the amount should be capitalised so that pursuant to section 124 of the Child Support (Assessment) Act 1989 the child support should be paid in a lump sum of $115,000.00.
The Respondent filed no documents, nor was he legally represented. His position was that the orders should not be made as there was no money left.
Background
The parties have three children. The applicant deposed to having married in around April 1990 and separating finally in around September 1995. There were previous separations, and the applicant first applied for Child Support on about 13 June 1994. The children have remained in the care of the Applicant since the parties separated.
The Child Support Agency issued nil assessments on ten separate occasions since 13th June 1994. The Respondent has paid a total of $1,681.00 in child support to the Applicant since the case was registered. On 29 January 2003 a Senior Case Officer determined the Applicant’s change of assessment application and determined the annual rate of child support to be $11,500.00 per annum for the period 2nd January 2002 to 31st December 2004.
Despite the assessment, the Applicant has received no payments of child support for several years. The Respondent was injured in a workplace accident in 1999.
This application has arisen because the Respondent received a compensation award on 31st October 2002 in the sum of $258,000.00. After payments out to Centrelink, Workers’ Compensation payments and legal costs, the Respondent received an amount of $111,449.61.
Jurisdiction
It is clear that the Court has jurisdiction to deal with the Applicant’s departure application. A court may entertain both a lump sum application and a departure application that are filed and within the one document if it chooses to exercise its discretion to do so under
s.116(1B) of the Child Support (Assessment) Act. Where applications are made contemporaneously then at the time they are made it can properly be said that there is an application pending when the other application is made. It has also been held that a lump sum application can stand entirely independent of the relief sought in the departure application (see McGuiness & Cowie [2002] FamCA 461; (2002)
29 Fam LR 441).
I note that the Applicant has abandoned her claim for a lump sum. In her amended application filed on 22nd April 2003, she amended her claim so as to seek only the sum of $35,000.00, and she has now decided as at the date of the hearing that the claim for a lump sum is not to be pursued at all. I am satisfied that this has been done as a result of a decision about the likelihood of success of such a claim, and I do not believe that it affects the jurisdiction of the Court to hear the departure application.
The hearing
The Respondent has not filed any documents, and it was only relatively late in the proceedings that he appeared at all. He was not legally represented. It became quite clear that his proficiency in the English language was not sufficient to allow him to participate in the proceedings without the assistance of a T interpreter, so the proceedings were adjourned until this assistance could be made available.
The applicant tendered a letter from the Respondent’s solicitors showing that his common law claim against I W Ltd and B Ltd had been settled for $258,000, of which the Respondent had received the sum of $111,449.61 on 31st October 2002.
The Respondent made a submission from the Bar table in which he asserted that he had no money left. He chose to address the Court in English, notwithstanding the availability of a T interpreter, who sat beside him and interpreted some of the questions that I asked him. In his submission the Respondent said that he had gone to New Zealand for the funeral of an aunt, but otherwise gave no explanation as to what he had done with over $111,000.00 in a period of nine months.
The Applicant gave evidence that the Respondent travelled to T in December 2002 and was away for some weeks. She also quoted the Respondent as having said to her about the money: “I’ll withdraw it all and spend it. You have no right to that money. You won’t see a cent of it”. It is the Applicant’s belief that the Respondent has taken a substantial amount of that money to his family in T in order to avoid paying his child support obligations. I am satisfied that there are grounds for her belief.
Conclusions
In her submission, the Applicant correctly identified the matters set out in s.117(b) with which the Court must be satisfied before an order can be made, namely that one or more grounds for departure mentioned in subsection (2) must exist, that it would be just and equitable to make the order, and that it would be otherwise proper (Gyselman (1991)
15 Fam LR 219; (1992) FLC 92-279). He further submits that the assessment in this case is substantially greater than the apportioned expenditure on the children. Ms Beckhouse, for the Applicant, submitted a copy of the Lee Expenditure Survey in support of her client’s claim that $75.00 per week would not be an inappropriate amount for each child.
The Applicant submits that, pursuant to s.117(2)(c), application in relation to the child of the provisions of the Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of child support to be provided because of the income, earning capacity, property and financial resources of either parent or the child.
I am satisfied that the Respondent has an amount of funds that are not presently ascertainable, being the residue of the funds that he received on 31st October 2002. It would appear likely that he has already removed substantial sum from the jurisdiction. I am satisfied that I should make the orders sought by the Applicant.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 14 July 2003
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